One of the arguments being put forth by the Obama administration to support its (Pick One: strange; risky; confusing; dangerous; insane; brave) decision to try Khalid Sheikh Mohammed in a New York Federal Court is that it will highlight American values and the integrity of our justice system. Indeed, this was about the only rationale that Administration ally Senator Jack Reed (D-RI.) could muster in his appearance with Fox News’ Chris Wallace:
WALLACE: But here, I think, is the question. There are some obvious downsides to having this trial in a civilian court in New York City. There’s the risk that intelligence information will come out. There’s less protection of that.
In fact, in the 1995 prosecution of the so-called blind sheik, apparently information came out that Osama bin Laden was a co-conspirator and he then left Sudan for Afghanistan. There’s obviously the danger of a terrorist attack. It’s going to make New York City once again Ground Zero for Al Qaeda. There’s the danger of more of a political circus, that they’re going to use this as a platform. There are obvious downsides.
WALLACE: What’s the upside?
REED: The upside, I think, is you are vindicating this country’s basic values. And it’s not to condone terrorism. But it is to stand as a symbol in the world of something different than what the terrorists represents, blind violence directed at those they dislike.This is an opportunity to show that we’re better than they are, we’re much better than they are.
All Right. That is a valid, if not exactly a clinching, argument, and one must presume that Reed was briefed by the Administration, and was not just spit-balling. But think about his answer to Wallace’s next question…
WALLACE: What if one of these guys gets off?
REED: Well, that is highly unlikely. The evidence is compelling.
WALLACE: But there are no guarantees in a trial.
REED: There are no guarantees, but under basic principles of international law, as long as these individuals pose a threat, they can be detained, and they will.
WALLACE: But if someone is acquitted and then he’s picked up again…what’s the message that would send to the rest of the world?
Good question, Chris! What kind of “values” do we show the world by having a “fair trial” where the defendant won’t be released whether he’s acquitted or not…and where the U.S. admits as much beforehand? In today’s Congressional hearings on the matter, Attorney General Eric Holder stated unequivocally, “Failure is not an option. These are cases that have to be won.”
“That have to be won”? Failure, as in acquittal, is “not an option”? Does this sound like a fair trial to you? It sounds like a show trial to me; a kangaroo court. Yet I can see many ways an unrigged trial could be lost: after all, how many criminal defendants in the last, say, four decades have been convicted in civilian courts despite that fact that they were tortured by authorities, like Mohammed was?
Oh, but remember, Senator Reed has the solution in case Holder’s non-option occurs: don’t release him, no matter what the result:
REED: I do not believe they will be released, because under the principle of preventive detention, which is recognized during hostilities, we held…
Wait a minute! So even if Mohammed is acquitted (though the U.S. Attorney General suggests that we can’t let that happen), he won’t be released anyway? Doesn’t that make the trial a sham? Wallace pressed him:
WALLACE: What I’m saying is if he’s acquitted and then picked up again and held… what’s the message that sends?
REED: Well, but you presume that he’ll be acquitted and released. I don’t presume he’ll be released.
The comments of Holder and Reed do not suggest that the New York trial is going to serve as a shining example of American values, like justice, fairness, and due process, to our enemies. Their comments suggest a cynical pseudo-trial in which either the result is a forgone conclusion, or irrelevant, because the prisoner will never be released, no matter what.
Such a trial only shows our enemies, not to mention the rest of the world a lack of honesty and integrity, as well as an excess of hypocrisy.
Holder, Senator Reed and especially the President need to think this strategy through a bit more. The more one examines it, the less sense it makes, ethical or otherwise.